Ben Kuehne, a widely respected Miami lawyer whose clients have included former Vice President Al Gore and other major politicians, surrendered Thursday on federal criminal charges for his behind-the-scenes role in a complex international drug-trafficking case.

An indictment, unsealed at his morning court appearance, charges Kuehne in a money-laundering conspiracy with approving tainted legal payments by an accused Colombian drug kingpin to his defense attorney in Miami.

The Indictment is here (pdf). What jumped out at me was Paragraph 15, alleging a substantial amount of the funds that were the subject of Ben's opinion letters to Ochoa's lawyers came not from the clean business of an Ochoa relative as set forth in Ben's letter, but from five undercover law enforcement operations the Government had in place in New York and Miami. [More...]

Were they setting him up? Did they do such a good job of disguising their undercover operation that no one could have detected it wasn't a legitimate business? [Note, this is speculation on my part, I know nothing about the case other than what the Indictment says. It may not have been a undercover operation posing as a legitimate front business.]

Ochoa's lawyers for whom Ben prepared the opinion letters on the legitimacy of the legal fees, stand by Ben. From the first linked article above:

[Roy] Black's law firm -- which headed the Ochoa representation and was assisted by three other prominent lawyers, Martin G. Weinberg, G. Richard Strafer and Lawrence J. Kerr -- issued a joint statement. It said Ochoa's legal fees were legitimate and Kuehne's research into the source of those payments was exhaustive.

''The law firms involved in this case have always believed that Ben's work was extremely thorough,'' the statement said. ``At each phase, he issued detailed written opinion letters advising that the source and transfer of funds was legal and proper.

``During the course of Ben's work on this matter, the lawyers involved in the Ochoa defense saw nothing to suggest that Ben was doing anything other than his typically careful, factual research and legal analysis. They still stand behind Ben's work.

I don't know Kuehne, but I do know Roy Black and Marty Weinberg quite well, and like everyone else who knows them and has worked with them, I can absolutely say they are among the best, most ethical and careful lawyers anywhere in the country. As legal observers interviewed in the Herald article say,

Black hired Kuehne to vet Ochoa's fees precisely because of his squeaky-clean reputation and meticulous standards.

I went to court to support Ben. Half of the legal community was there to show their support. (He was released on a $250,000 personal surety bond.) Watching this unfold really stuck in my gut. I am still in disbelief. I actually had a case in the past with the lead prosecutor from DOJ. I went up to him to say hello and he exclaimed without prompting: "This is a wonderful day for the government." The comment was unnecessary and it sickened me.

I walked away from him thinking just the opposite. This is a terrible day for our country. Ben will be acquitted. But at what cost to him? And our justice system? Now, more than ever, it's critical to fight for our Constitution and our justice system.

As to Kuehne, a description of his cases and career is here, including his rise to national prominence as a key member of Al Gore's legal team in the Florida presidential recount case.

Here's a statement in support of Kuehne I received by e-mail:

STATEMENT OF JON MAY INSUPPORT OF BENEDICT P. KUEHNE

An innocent man has been charged with a crime. His name is Ben Kuehne. And I am proud to call him my friend. In the coming days you will hear only what the government wants you to know about the allegations against Ben. And you may be tempted to believe what you hear. But don’t.

The government drafts the indictment and the government is permitted to broadcast its contents to the community. But Ben’s lawyers are not permitted to comment on the evidence. So you will only hear one side of the story.

What is true is that Kuehne was retained by nationally known lawyer Roy Black to research and determine the legality of legal fees paid to Black’s legal team for the representation of Colombian Drug Kingpin Fabio Ochoa Vasquez. This representation of Black, whose legal fees have not been challenged or forfeited, forms the entire basis of the indictment, directed by main Department of Justice officials in Washington, against Kuehne.

This case represents the first time ever in which federal criminal charges were brought against a lawyer whose legal work consisted of representing a fellow lawyer who sought advice about compensation for defending a client in a criminal case. To target an adversary like Ben Kuehne, who is held in such high regard by the community and whose integrity is unquestioned, sends a message that any lawyer is at risk, even concerning previously unheard of prosecution strategies like those used here. Finally the fact that this prosecution is political payback is demonstrated by the government’s efforts to leak its investigation while Ben’s lawyers were trying to convince Washington that these allegations were unfounded. On a number of occasions Washington provided reporters with the details of the investigation in an effort to destroy Ben’s reputation in the community. They did so knowing that there was no one to investigate their unlawful violations of grand jury secrecy.

We would all like to think that our Justice Department seeks to do justice. But the sad reality is that increasingly Main Justice in Washington has been dominated by zealots intent on winning no matter what the costs. Just this year, the Bush Justice Department accused the lawyers representing the Guantanamo detainees of treason. Recently a federal judge in New York dismissed all charges against a number of defendants where the
prosecutors threatened their former employer, a major accounting firm, with indictment if it paid for lawyers to represent the accused. And as it has becoming increasingly clear, federal prosecutors who failed to file voting law violation charges against Democrats were fired for not towing the party line.

So now Ben Kuehne, a prominent election lawyer and defense attorney, stands wrongfully accused of participating in a money laundering scheme. A past Dade County Bar President and current member of the Board of Governors of The Florida Bar, Ben Kuehne’s entire personal reputation and legal career have been exemplary.

In 2000, Ben served as National Counsel and Florida Counsel to Vice President Al Gore and the Gore/Lieberman Recount Committee during the Presidential Recount Litigation. His responsibilities included representation before Florida canvassing boards, litigation in both state and federal courts, participation in the recount trial, and preparation of briefs to the Florida Supreme Court, the Eleventh Circuit Court of Appeals, and the United States Supreme Court.

During the 2004 presidential election, Ben was a Senior Counsel to the Kerry/Edwards Presidential Campaign, coordinating the Florida Legal Team in early voting and election day voting issues. Ben was prominent in uncovering abuse by the Department of Justice in commencing investigations
of supposed election law violations in Ohio.

Those investigations suppressed Democratic voter turnout, helping bring about President Bush’s 2004 re-election victory. Kuehne successfully represented the public interest in the Miami Voter Fraud case, when he overturned the illegal results of a mayoral election marred by massive voter fraud. Kuehne also prevailed in a politically-charged prosecution of a prominent Florida state senator for alleged campaign finance and reporting violations.

Described by the progressive organization, People For The American Way, as a “lawyer’s lawyer” and “champion for constitutional rights,” Ben received its Spirit of Liberty/Defender of Democracy Award in 2006 for his successful federal court challenge in the Mi Familia Vota case to the unconstitutional Bush administration efforts to prevent the registration of newly sworn citizens as voters after citizenship ceremonies. Kuehne was also named one of the “Lawyers of the Year” by the National Law Journal for his work on behalf of Vice President Al Gore in the 2000 Recount Litigation. Ben leads a coalition of advocates who are regularly called upon to initiate public impact litigation for the redress of constitutional violations arising from government action.

As just a few examples, Ben successfully represented 15 Cuban refugees in a constitutional challenge to the “wet foot/dry foot” policy resulting from the well-publicized repatriation of Cuban nationals who landed on the Old Seven Mile Bridge in the Florida Keys. As lead counsel for Save Dade, he successfully led the effort to prevent an election to nullify the Miami-Dade County Human Rights Ordinance.

Kuehne is well-known for his extensive contributions to the community outside the courtroom, having served as a founding Executive Committee member and Trustee of the Alliance for Ethical Government, a community organization founded to improve the ethical rules governing local government officials. He is a former member of the Board of Legal Services of Greater Miami, and has been the recipient of pro bono awards for
providing legal services to the poverty community.

In addition to his meritorious service as President of the Dade County Bar Association and President of the Florida Association of Criminal
Defense Lawyers – Miami Chapter, Ben Kuehne was the recipient of the Criminal Justice Award by the Dade County Bar Association in 2000 for his
“outstanding contributions to the criminal justice system.” He is a noted speaker and author on important legal and political issues, regularly appearing as a faculty member at advanced Bar seminars on cutting-edge criminal law issues.

Nationally recognized for his leadership and success as a lawyer and community leader, Ben is named in The Best Lawyers of America (2000-2007)
and Chambers USA America’s Leading Lawyers, Litigation: White Collar Crime & Government Investigations (2004-2007). He was named the Best Lawyer in Miami by New Times Newspaper in 2000 .He continues to be included by the South Florida Legal Guide and Florida Trend’s Legal Elite as one of South Florida's Top Lawyers in every annual publication.

Ben, is committed to securing complete vindication by proving that these charges are false and an unprincipled effort to ruin an ethical community leader. It is my hope that the community Ben has selflessly devoted himself to will stand with him and give him the support that he deserves.

A few other notes: Despite paying more than $5 million in legal fees and having the best representation possible, Ochoa was convicted and sentenced to 30 years. The Government got its pound of flesh.

And, Roy and Marty and team are not in any hot water.

Kuehne faces conspiracy and money-laundering charges -- along with two Colombian defendants -- for advising them to accept Ochoa's legal payments. Black and the other defense lawyers are insulated from criminal liability because they received advice of counsel from Kuehne.

And, from reading the Indictment, I see the Government is seeking to forfeit all $5 plus million in legal fees and expenses from Kuehne, even though he only received $220,000 to $260,000 - from Roy's firm which was paid out of expense funds provided by Ochoa, not the legal fees.

Last point: The judge assigned to the case is Marcia Cook, who recently presided over the Jose Padilla terrorism trial.

I can't even imagine what havoc this will bring to Ben's life, career and finances. Even if he wins, he'll be damaged forever. There is no motive set out in the Indictment for his alleged crime ... and there's none I can conjure up. Someone with Ben's background just doesn't make stuff up.

I'm going to be following this case and looking forward to the day I can announce the case has been thrown out or Ben's been acquitted.

Hillary. This is so disgusting...that the only way I can express my anger is by donating to Hillary...she understands precisely what Republicans are doing...this is just another example...as in the Alabama case you describe...of the Justice Department run amok with political right wing Karl Rove influenced infiltration. Only a strong President like Hillary can change what these Republican criminals are creating in our midst. Keep in mind, the Bushies are trying to install loyal Republicans in every corner of the government (and Justice Dept) that will be protected by the civil service...and will not leave with a new President. They are executing a nefarious plan that includes intimidation as one of their tools. Look at how weak Harry Reid is...I wonder what they have on him... Obama has no understanding of the complexities of the bureaucracy..he is clearly not an advocate..and will be blindsided. But Hillary has experienced first hand these expensive investigations...her Ken Starr nightmare...she knows how they play ball...and she knows how to defeat them..It is precisely because of her personal knowledge and courage that she is the only one we should trust in our time of peril. I believe they will do anything to stop her...and we must not let it happen. The entire media has been devoted to taking her down...these types of stories are ignored...Thanks for bringing them to light. You are the only one doing it that I'm aware of. And it is vitally important.
.

This story is political...is directed at a Democrat with the intent to intimidate other Democrats...I know we can be surprised later upon learning more facts..but the pattern of the Bush Administration is fairly clear. No one is paying attention now...but the Bush Administration is still quite busy. All appointees to Justice should be blocked and all judicial appointments should be blocked.

Question. Can our hopefully Democratically appointed new people in the Justice Department get a person out of prison if they are found to have been a victim of abusive prosecution and what is the criminal penalty for an abusive prosecutor?

Because I want to see these people disbarred and in jail for their actions if, as seems likely, they have abused their office for political purposes. I don't want to see these same people turning up a decade later in the same or higher office. I don't want to see them nominated to be a federal judge. Can we at least stop the recycling of this one group of criminals from one Republican administration to the next?
Nixon --> Reagan --> Bush --> Bush--> ????

Reading stories like this make me feel sick for our country. How far we have fallen.

Kuenhe, but one thing that leaps out immediately to me is that he did not merely investigate, research and give advice to Black et al. He acted as a conduit for for the tranfer of huge sums of money.

According to the indictment funds were transferred from various sources into a trust acoount Kuehne controlled and then disbursed to the defense team. That's well beyond providing legal advice to a client and given the nature of the underlying case it should not require a sharp legal mind to appreciate the peril.

It does appear as if perhaps the Feds were setting a trap and hoping the bait would be taken and false representations made which the Feds could then prove were false because they controlled some of the sources from which Kuehne accepted mone and can show the sorces are different than he claimed.

under the government's theory, every lawyer who allowed their trust account to be used to escrow funds could/would be somehow liable for money laundering.

Without going into all the reasons attorneys act, through their trust accounts, as escrow agents, it needs to be remembered that the money held in escrow in them is never the attorney's. It is the client's. That, FWIW, was the gist of the Republican-pushed cases a few years back assaulting the use of interest on funds held in lawyers' trust accounts to fund legal services for the poor. I forget the name of the case that went to the S.Ct. and (IIRC) held that the interest belonged to the clients and the government's appropriation of it for the legal services constituted a "taking", but that made clear that the client owned the money.

I don't know whether, or to what extent non-ownership of the funds is a defense to a money-laundering charge, but I am sure it has some weight.

More to the point, the required openness of attorney's trust account records militates against any idea there was a concealment - concealment implying criminality - at issue here. In the state where I practice (and, I'd expect this is the same everywhere), attorneys are required to keep their trust account records open for audit by the ethics police at any time. While they're only required to maintain records for a period of years (longer than the civil statute of limitations), they also take note of the fact that there is no statute of limitations for ethics offenses. I still have all of my trust records since day one, and most lawyers I know do the same.

Conclusion - this case is of a piece with Siegelman, Fieger, and the other political retribution cases this Bush DoJ has brought.

I know, he's flush with cash, but I want to give money towards his defense as my way of showing that I, for one, will not simply read about this obvious abuse of power and go away without fighting for what is right. How can anybody sit idly by when there's a clear cut case of political assassination by a corrupt DOJ? There's plenty of time for these hacks to do more damage before we run them out on a rail in 2009 and beyond, so we must take a stand NOW!

was not to suggest that lawyers do not receive, hold and disburse other peopl's money in their trust accounts for a myriad of legitmate purposes.

My point was that it's wrong to claim he was indicted solely for giving legal advice.

"Ownership" of the money is not the issue. One who knowingly and intentionally facilitates the transfer of "illegal money" belonging to someone else for the purpose of concealment or the purpose of promoting or facilitating a criminal venture is guilty of money laundering. Now lack of any financial or other benefit flowing from the person's acts might well be strong evidence of lack of motive and therefore undermine the prosecutor's claim of knowledge and intent but the illegality of the acts have nothing to do with owning the money.

People launder other people's money all the time using methods ranging from the most simplistic imaginable to the highly complex.

For example, if a courier physically carries money from a drug buyer to a drug seller knowing the money is the proceeds of a drug transaction he can be convicted of money laundering and it happens all the time.

The theory just disturbs me, the same way I'm sure a person in any line of work would be disturbed if they learned that something they regularly do in their business and consider innocuous could be the basis for criminal charges.

regularly receive millions of dollars from the head of international drug cartels and obviously no one considers it "innocuous" to do so, hence Black et al took the step of paying another lawyer to give them opinion letters saying the money was clean so they could use the advice of counsel defense when challenged.

Obviously, no one takes that step or pays $200,000 unless there are obvious reasons to suspect the money might be the fruits of crime.

We'll hear a lot of self-righteous and self serving talk from some members of the criminal defense bar, but I'd be more impressed if the concern about ensuring defendants have the best defense was evinced more often when the defendants are people of limited means whose cases will draw little attention in the media.

Ochoa probably could have received good representation from the FPD's office or a CJA panel attorney and I suspect these guys would not be contorting and gyrating to rationalize representing someone who could only scape up $25,000.

If Kuenhe falsified documents or made false statements in order to allow his friend to make a couple of million of illegal money (and make a hefty sum himself), he should be prosecuted.

The people who ultimately are hurt by this kind of things are defendants. It's tough enough being a criminal defense attorney without the added burden of people doing things that perpetuate the perception of defense lawyers as shameless, greedy whores, but the people who really lose are the people lawyers represent not the lawyers.

As usual, I disagree with much of what you write here, particularly your legal assessments and assumptions, and caution readers that this site does not give legal advice.

As to this,

Obviously, no one takes that step or pays $200,000 unless there are obvious reasons to suspect the money might be the fruits of crime.

Any defense lawyer in a big case would take that step if the government told him or her before entering the case that it thought the client's money was tainted and it might try to seize it. It's not that the lawyer thinks the money is tainted, it's that the Government does and the lawyer is hiring someone to undertake an objective review.

some criminal defense lawyers might forego the huge fee because they suspect that a man who is the second or third generation of an international drug cartel is extremely unlikely to have any money or property of that magnitude which cannot be traced back to the proceeds of illegal activity.

Having made that reasonable observation, the lawyer could then represent the person for a modest amount (or pro bono) if he was dedicated to providing a defense or he could forego representation. If the lawyer however is more interested in the millions of dollars ....

This is what I mean by self righteous and self serving comments from SOME members of the defense bar. Let's not play dumb-- it's about the money.

If you want to defend the right of lawyers to be paid for legal representation with the proceeds of crime there are arguments to make, but make them rather than trying to pretend that is not what this scenario is about.

further on which legal assumptions and assessments with which you disagree.

I'm particularly intrigued with how you interpret anything I wrote to be premised on an assumption of guilt. I'm also still wondering about how you becamse outraged immediately upon learning of this indictment. I'm assuming you must know something more than Mr. Kuehne is a lawyer who has friends and is respected because if every indictment of someone who has friends or people who respect him was outrageous almost all indictments alleging white collar crimes and a whole heck of a lot alleging any sort of crime would also be outrageous.

''The law firms involved in this case have always believed that Ben's work was extremely thorough,'' the statement said. ``At each phase, he issued detailed written opinion letters advising that the source and transfer of funds was legal and proper.

``During the course of Ben's work on this matter, the lawyers involved in the Ochoa defense saw nothing to suggest that Ben was doing anything other than his typically careful, factual research and legal analysis. They still stand behind Ben's work.

Rather than assume Mr. Keuhne is guilty, try going with the presumption of innocence. An Indictment is nothing more than an accusation.

but the funny thing is I don't particularly find Black or Weinberg to be disinterested and objective commetators in this matter.

I'm not assuming Kuehne is guilty. I'm saying that IF he did what he is accused of doing then he should be prosecuted. A license to practice law is not a license to be above the law.

You seem to be suggesting that he should not have been indicted but offer no rationale for that assertion beyong his being " a respected lawyer." I don't believe being a lawyer or being respected confers immunity from prosecution.

He's certainly entitled to a fair trial and the government should be required to meet its burden of proff as to each and every element of every offense. I'd assume he can afford good lawyers who won't have to worry that their fees come from criminal activity so it should be an interesting case.

in Decon's post is the accusation that big-time attorneys like Roy Black or Ben Kuehne are "self-righteous" and "self-serving," and don't represent people of limited means. I don't know either of them personally, but I'd be very surprised if that accusation was true. (I wonder if Decon has any basis for making it.) In my 30+ years' experience as a criminal defense lawyer, my observation has been that most of my fellow attorneys in private practice do a fair amount of lower-rate or sliding-scale work, and even more (I would say most) do a significant amount of free, pro bono, or court-appointed cases. Most criminal defense lawyers have chosen our specialty because they believe in principle in defending people's constitutional rights against the attempted exercise of government power. That belief most often goes hand in hand with a desire to serve (some of) those in need also.

example of self serving and self righteous commentary from SOME members of the criminal defense bar.

I am a criminal defense attorney and I am by no means casting aspersions at the practice of criminal defense. I think the vast majority of people who practice criminal defense whether for public defenders' offices or in private practice are honorable people.

That does not mean that no criminal defense lawyers have ever broken or will ever break the law and I am just commenting on the knee jerk reaction of terming it an "outrage" that a lawyer has been indicted simply because he and his friends say he is innocent.

If someone wants to cite FACTS tending to show this is a malicious prosecution and the allegations are so lacking in credibility that it was wrong to present this case to a grand jury go right ahead. Kuehne is entitled to a presumption of innocence but lawyers should understand that the presumption of innocence is not equivalent to a presumption of government malfeasance in bringing the prosecution. Certainly, that seems to be position being asserted by some here.

i guess the real issue is, did mr. kuehne do sufficient due diligence in his research? if so, and the false representations were made by govt. agents, which caused mr. kuehne to legitimately believe that the funds transfered were "clean" to begin with, then this begins to sound like a manufactured crime, by the govt.

i believe the term is "entrapment", causing someone, who would not ordinarily be predisposed to commit a crime, to commit one.

with regards to your concerns about lesser known defendents having the best defense possible, i agree. however, the chill placed on the criminal bar, by this type of DOJ action, certainly isn't going to make it easier to provide that defense.

I'm not saying that failure to perform competent due diligence is or should be criminal.

His defense may end up being, "hey it was the Columbian lawyer and accountant who really did this and they just fooled me, honest, I swear." That should be a valid defense, if believed, to any criminal allegations. That won't allow him to maintain his reputation as a good lawyer, but it beats the alternative.

would be an extremely difficult defense to maintain where the crime alleged involves a course of conduct over a considerable period of time.

It would be even more difficult where in addition to involving planning and preparation the alleged offense involved secondary and tertiary acts surrounding the transaction itself.

Moreover, it's not now clear but it might be the case that the government operations referenced in the indictment as being the source of funds which forged documents indicated from a different source may not have even been directly involved with Kuehne. If so, while that would undercut an entrapment defense it might help him insulate himself from the fabrications and make it easier for him to establish lack of knowledge.

Next go before the House or Senate Judiciary Committees? Someone should bring this up. The Siegelman prosecution can be laid at Gonzalez door but this one is all Mukasey's and he was confirmed to put an end to just this kind of political prosecution.

If he doesn't want to, given all the other crap he has given to Congress lately, then they should start impeachment proceedings immediately.

The DOJ is such a rats nest and this is the only way to really find out the whole of the story.

Mukasey should be impeached based on a website terming an indictment of a lawyer an "outrage" moments after it was unsealed and without any knowledge of the actual merits of the case?

Given that this is the same website that termed the initial news stories about Norman Hsu a "smear" moments after they appeared without any knowledge of the actual merits of the reports, it might be prudent to hold the impeachment demands in abeyance until some reason for outrage is actually put forth.

no one has any information supporting the assertion this indictment was an outrage?

I didn't think so, but does anyone want to offer reasons why we should not require lawyers to verify that money paid to them as fees is free from criminal taint?

One could, and some do, argue that placing this burden on lawyers has 6th Amendment implications. Among them are preventing people who have merely been accused of crimes from obtaining the services of the lawyer of their choice; placing the lawyer in an adversarial position to his potential client if the lawyer or persons acting on his behalf is required to investigate the source of fees thus negatively affecting the lawyer-client relationship boith in terms of trust and in terms of inhibiting the client from being honest with his lawyer which can lead to problematic representation; etc.

The other side of the issue includes arguments that people do not have the right to use illegally gained money or property for any purpose and hiring lawyers is no different; that lawyers have no more of a right to knowingly accept the proceeds of crime in payment for their services than does any other person engaged in any other otherwise lawful occupation; etc.

One problem Kuehne may have here from a statutory perspective is that he may not be allowed to avail himself of the safe harbor provision 18 U.S.C § 1957 not merely because the government chose to charge him with violation of a different money laundering statute but because his transactions were not directly related to HIS representation of a client charged with a criminal offense. He may have maneuvered himself into a position where the judge will refuse that theory on the ground the legal services he was rendering were on behalf of the lawyers and not the criminal defendant.